Silenced witness

Following last month's exclusive Ecologist investigation, Burying the truth, the Douglas Gowan story continues...

This month Jon Hughes wades back into murky world of Monsanto, Broﬁscin Quarry and the Environment Agency and into a story that simply refuses to fade away.

In the years 1967-74 Douglas Gowan was the lead investigator into mysterious animal deaths in the vicinity of Brofiscin and Maendy quarries in South Wales. He traced the cause back to the dumping of uncontained PCB wastes by the Monsanto chemical plant in Newport.

In 1972 Gowan’s assiduous work led Monsanto and its waste contractors Purle to accept the environmental implications of its actions and, in the presence of Gowan and government representatives, the drawing up of a legal agreement to remediate. The 1972 agreement was signed – but never implemented. In 2003 the quarry at Brofiscin erupted, disgorging an acrid pall over the area, and discoloured water into the environment for weeks.

Faced with widespread public anxiety the Environment Agency (Wales) appealed for people with knowledge of the quarry to come forward. On being alerted to this in early 2006, Gowan contacted the Agency, armed with contemporaneous reports, expert analysis and evidentiary proofs secured at the time; a sworn affidavit from 1972 as to what he witnessed at the quarry over his six years there, including details of the 1972 remediation agreement, and a current witness statement confirming events.

Between 1973 and 1999 Gowan, a qualified lawyer, accountant and a company director, was resident in Switzerland and America. Rather than be welcomed as the key witness who could help build a strong case against Monsanto, he has been bizarrely treated as a villain of the piece. Following our publication of Gowan’s story, the Environment Agency has sought to defend its position (see Letters page) but documents released under the Freedom of Information Act and seen by the Ecologist paint a completely different picture to that proposed by the Agency and show the Agency to be, in the language of government, ‘not fit for purpose’.

The most telling turn of events since the publication of last month’s cover story is that the police have launched an investigation into seemingly covert and invasive activities at the Environment Agency.

The documents released to Gowan by the Agency paint a shameful picture and reveal that:

• From the moment he first responded to the Agency’s appeal for witnesses, he has been viewed as ‘trouble’;

• Some of Gowan’s emails have seemingly been illegally intercepted;

• The Agency has sought to question Gowan’s reliability when they have had in their possession many documents – including one from Monsanto in 1973 openly discussing how to destroy his credibility by criminal and fraudulent means – that clearly verify his factual account of events;

• The Agency has apparently shared evidential documents with Monsanto – the party that they should be pursuing; and

• The Agency is seemingly endeavouring to isolate Brofiscin, as a one-off or orphan situation, when it is clear that the dumping of Monsanto PCB wastes also took place in at least 10 landfill sites across Wales and England.

Furthermore, legal documents from the US reveal that, since February of this year, the Agency has had no proper representation in the US bankruptcy court, where the successors to Monsanto (Solutia and ‘new’ Monsanto) liability will have their chemical waste legacy liability determined. Repeated claims by the Agency that they have protected the UK’s rights are groundless, as no hearing has occurred, and no Court order exists.

Taken together the documents, which stand more than one foot tall, paint a picture of the Agency concentrating its time and effort on trying to silence Gowan rather than pursuing Monsanto – the company responsible for dumping PCB wastes into the UK countryside. The Environment Agency and its predecessors have known since 1969 that chlorinated hydrocarbon products pose a persistent and lethal threat to public health and the environment, and that in 1969 Monsanto itself was internally advising its management that landfill was an unacceptable way of disposing of such toxic wastes.

Gowan has been on the receiving end of such official indifference since he first became involved with events in South Wales and in the West of England nearly 40 years ago, when as the NFU’s pollution expert he represented the interests of farmers and landowners in the affected areas.

Back then his testing equipment was frequently vandalised and he was assaulted on site; there was an attempt to bribe him and he was badly beaten outside of Dophin Square in London, leaving him with broken ribs; he was accused of falsifying his test results and found guilty of libel until the court recognised that the evidence against him had been falsified; and he was libelled from the safety of the House of Commons. Quite simply every effort was being made to discredit his findings. To some extent this worked; his figures and results – which were analysed by leading labs and corroborated by the world’s leading experts – about the lethal levels of PCBs and other very toxic contaminants in the surface water around Brofiscin, and in the groundwater, and which are proven to have been shared with various government departments, and also Monsanto and Redland, have all disappeared from the public record. Subsequent studies in 1973, 1978, 2004 and 2005 have omitted all reference to them.

It is perhaps instructive that at the time these events were unfolding, Monsanto, which was increasingly agitated by his findings, described Gowan as being a ‘persistent nuisance’. Over the past year in correspondence, as the released documents show, the Agency has considered Gowan as a ‘persistent complainant’: much the same language and seemingly the same approach and attitude toward Gowan, as the released documents show.

A startling example is seen in an email exchange between Agency solicitor Natasha Lewis and Chris Young of the Water Research Centre (WRc). In these emails, which predate Gowan meeting the Agency with his evidence in early 2006, Gowan is referred to as ‘trouble’ and Young informs Lewis that he won’t release to Gowan the WRc’s records of investigations into Brofiscin. Young writes of Gowan as causing ‘lots of trouble at the time’ and his involvement leading to the Poisonous Wastes Act of 1972 – which we presume to be an erroneous description of the Control of Pollution Act of 1974, which indeed Gowan’s investigations and evidence were partially instrumental in bringing about.

That a long-standing employee of the WRc, a government contractor, should implicitly see the 1974 Act as troublesome is of concern. It is also of concern that the WRc has an apparent conflict of interest; as among its biggest clients are Monsanto and BP, both of whom dumped into Brofiscin. They also represent the Environment Agency and Defra, and in the past did work for the Welsh Office.

Further documents are equally as startling.

One is an article written in 1973 by Jon Tinker and published in the New Scientist. This is riddled with inaccuracies. First, Tinker claims to have met and interviewed Gowan.

Gowan strenuously denies this and his passport confirms that at the times Tinker claims the meetings took place in the UK Gowan was either in China, America or mainland Europe. Secondly, it confuses the landfill sites Gowan was investigating, making it in the main a wholly inaccurate and confused account of Gowan’s results. Thirdly, it contends that PCBs are water soluble – which in the main they are not.

Not only is this a wholly flawed account of events at the time, but the more disturbing aspect is that an annotated version of this article, in which every disparaging remark about Gowan and his evidence is highlighted, was apparently copied to Monsanto by the Environment Agency in June 2006. The question has to be: Why?

Gowan’s contemporaneous affidavit and subsequent witness statements also landed on Monsanto’s desks. How they were received is not known, although legal documents do reveal that the Agency was in discussion with representatives of Solutia and Monsanto. The first set was also sent to the company’s waste disposal contractors; originally IWD until they were bought out by Purle, which became Redland Purle in a merger, and eventually Redland.

A second set was delivered without Gowan’s knowledge to Monsanto by Martin Shipton, a Western Mail reporter. Around this time when he was unwittingly being openly talked about with third parties who are liable or potentially liable for remediation at the quarry, Gowan began to be subject to death threats, midnight callers and several attempted break-ins at his home.

When Gowan sought support and protection from the Agency, Lewis made her position toward Gowan clear in an email to colleagues; he is a burden on her time and distracting her from her general duties. She is explicit in telling her colleagues the Agency has no duty of care toward him, or any Environment Agency witness: “It is not the Agency’s role to offer any guarantees or ‘comfort’ to someone who is concerned about their safety,” she writes.

Not only does this astonishing behaviour ignore a direct order to secure police protection for Gowan from the Agency’s chief executive Sir John Harman, it renders the Environment Agency redundant. For a government body whose raison d’etre is to be a watchdog and enforcement agency to say it has no duty of care towards witnesses leaves its credibility in tatters.

Consequently, rather than alerting the Chief Constable at Norfolk, on whose patch Gowan lives, a letter vouching for Gowan ‘should he get in touch’ is inexplicably sent to a sub-station in Great Yarmouth, leaving Gowan exposed to danger. He was then stalked, harassed and had his home invaded.

Yet at the time the Agency had in its possession documents from Monsanto that clearly corroborate Gowan’s evidence and their hostility towards him.

Importantly, Monsanto documents among those released, recognise that Gowan had split his samples with them and the relevant government ministries in the period 1969 to 1973. The Agency has always told Gowan they could find no record of these documents, and that the ICI laboratory studies of the time were lost. These Gowan has now recovered.

Another memo dated June 22 1973, describes a meeting between 15 senior executives from offices in Brussels, London, Newport and Ruabon at Monsanto: the subject; How to discredit Gowan. While much of this document has been redacted it records the following:

“If ICI and Monsanto were to carry out some sample analyses using agreed techniques and as a result were to jointly confirm our previously quoted figures this would do much to discredit Gowan. It would not, however, silence him because he has call on other labs in the US and Canada for his analyses.”

Implicit in this statement is a clear consideration of a conspiracy to defraud, and reflects a known strategy pursued by the company. In the US Monsanto habitually used Industrial Bio-Test Lab to test its products. IBTL was shut down in 1978 when exposed for doctoring reports in favour of the chemical industry, and its directors, who included ex Monsanto personnel, were jailed in 1984.

Within the released Agency documents are eight emails, all dated between March 6 and 8 2007, that have seemingly been illegally intercepted. These emails were from Gowan to among others; the Countess Mar, a crossbencher in the House of Lords who has been pursuing the case at Brofiscin; Susan Watts and Paddy French, two national television journalists who have also been following Gowan’s case; and GM campaigner Ian Panton.

All these recipients have confirmed to the Ecologist that they did not share the correspondence with the Agency. So how are they in the Agency’s possession? The fact that they are all largely benign and were all sent between March 6th and 8th, suggests that a tap has been put in place. When intercepting emails what is known as a ‘dump’ is created, i.e. all emails sent over a given period are collected in transit and copied to a dump for retrieval.

In the days preceding March 6 a number of peculiar events occurred at Gowan’s home, just outside Norwich. Twice an intruder tried to gain entry to his house and his security, phone and internet connections repeatedly crashed.

Yet the content of the emails is so anodyne that one wonders what the Agency made of them. More intriguingly is why they were released; as a warning shot to Gowan that he is being monitored, that they are waiting at the door? In the normal run of things the Agency would have to seek permission to launch a covert operation but none seems evident. As an enforcement agency it would be expected to get permission from the Home Office and use Home Office resources to execute the task. The police have informed Gowan that no such warrant exists.

There are also other documents that discuss what Gowan is going to do next, as if the Agency has knowledge aforethought of his movements and communications.

The lengths gone to silence Gowan are extraordinary and go right to the top. Sir John Harman’s PA writes that we should park the whole affair and forget about it; Paul Mee, the health chief at Rhondda Cynon Taf council – which would be the lead plaintiff on behalf of the people of South Wales – writes to Graham Hillier, the man in overall charge of the case at the Agency, stating we’re not interested in events 40 years ago adding, we should allow Gowan his say and ignore it. Hillier takes the extraordinary step of writing to the press saying Brofiscin is safe.

It’s an audacious claim given that the Agency is waiting on a report into Brofiscin by environmental consultants Atkins, who in 2005 wrote of the quarry, ‘Pollution of controlled water is occurring... The waste and ground water have recently been shown to contain significant quantities of poisonous, noxious and polluting material... and additional entry (into the environment) will therefore take place.’ This is clearly a civil service that has forgotten that its duty is to serve the public not its self interest or that of third parties.

Such public professions have resulted in parliament being repeatedly misled. A raft of questions posed by the Countess Mar have either been met with answers from Lord Jeff Rooker – the man answerable for the Agency at Defra – such as we don’t know at this time, or being plain wrong; such as, the contaminated area at Brofiscin is the size of a swimming pool.

Carwyn Jones, the Minister for the Environment at the Welsh Assembly released a statement saying there are no pollution linkages. This is bewildering as Brofiscin is deemed a ‘special site’ meaning that it is one of the most highly polluted sites in Britain. Both Jones and Dr Kim Howells, a Minister in the present government and the local Pontypridd MP, wrote to Gowan saying they didn’t believe him.

Before receiving these shocking documents, the Ecologist’s ongoing investigation into events at Brofiscin forced the Agency to the table and Countess Mar and Gowan met Viscount (Chris) Mills, the head of the Agency in Wales, David Cavell, its legal adviser, and other officers on April 26, 2007.

This promised a breakthrough that sadly never materialised and Gowan only agreed to talk about the meeting after Baroness Young cited it in the Agency’s defence in her letter to the Ecologist. The meeting in the Apex hotel in Seething Lane, London, lasted for nearly four hours, during which time Gowan, who was for 10 years a trustee or examiner in the US bankruptcy courts, outlined the urgency with which the Agency needed to stake a claim against both Solutia Inc and new Monsanto, and how at this 11th-hour it could possibly be achieved. It was agreed that with his expertise he should draw up a legal memoranda detailing the actions needed to be taken. Gowan did so early the next morning and forwarded it to the Agency. After hearing nothing he then received an email from Cavell bizarrely saying thanks but no thanks, we’re going to follow another course of action.

While it’s not unusual for lawyers to disagree about a course of action, the Agency’s handling of the case has done little to instil confidence in its judgement, or its understanding of events that are unfolding in the US bankruptcy court.

These complex proceedings result from the break-up of Monsanto in 1997; then Monsanto was split into three: Pharmacia, which is now owned by Pfizer; Solutia, which took over the chemical operations; and (to differentiate it from the original) ‘new’ Monsanto, the GM division. When this spin-off occurred, past liabilities that might materialise were divvied up between the three new entities. While Solutia accepted that it would be responsible for liabilities stemming from its chemical operations these were indemnified by ‘new’ Monsanto and ultimately Pharmacia, but there have been amendments since that may exclude the UK.

In 2003, Solutia, reeling from liabilities emerging from its past activities – primarily in Anniston, Alabama where its main PCB plant was and where PCB wastes were liberally dumped into the countryside and waterways causing a public health crises – sought voluntary re-organisation in the US bankruptcy courts. If it cannot meet its liabilities – and currently the company has placed before the courts documents showing negative net worth to be $1.4 billion – then new Monsanto will be exposed. A claim from the Environment Agency is not included among Solutia’s list of liabilities and UK environmental liabilities are assessed as zero.

What is lodged with the court is an open-ended, non-specific claim from the Agency for a possible liability as yet unknown that has not even had a hearing. Throughout, the document emphasises the Agency’s uncertainty as to whether any claim exists, e.g. ‘the Environment Agency does not know at this time whether it has any claim against Solutia or Monsanto’.

Yet the Agency has Gowan’s sworn testimony, witness statements and contemporaneous expert report from the time expressly stating in detail what was dumped, where, and in what quantities (around 80,000 tonnes of PCB contaminated waste materials – a fact admitted to by Monsanto’s chief scientist in 1973, Dr William Papageorge), and over what period. Also the agreement that was drawn up between Monsanto, Purle et al in front of Gowan and government authorities for the remediation of the quarry in 1972.

Furthermore there are documents publicly available on the chemical industry archives website, a project of the Environmental Working Group, stating that Monsanto recognise that dumping PCBs in landfill is a dangerous practice and accepting in 1970 that they will be responsible for UK liabilities stemming from the problem created.

Yet inexplicably the Agency still does not know whether it has a claim.

Further undermining the Agency’s credibility is a peculiar situation concerning their US counsel, Lovells. Two lawyers from the firm were introduced to the court – in accordance with protocol a lawyer has to be introduced to the court before making representations – as representing the Agency. However, both parted company with their employer in February and no new lawyer has been introduced to the court. Yet the lawyers remain listed with the court as the Agency’s representative. When the Ecologist emailed the Agency’s named representative at Lovells, we got back a pro forma email stating they had left the company.

It would seem then that the Agency has had no effective legal representation in the US bankruptcy courts since then and certainly no new lawyer had been admitted to the court and no specific claim has been lodged, at the time of going to press.

Yet the Judge in the case, Prudence Carter Beatty has indicated that she is probably going to respond to requests from the plaintiffs in the case, draw a line under proceedings and re-organise Solutia through the Court, as Solutia has failed to come in with an acceptable Plan. At this point (widely expected to be May 18) all claims are what is known as ‘statute barred’, and it is increasingly unlikely that any claim will be accepted from the Agency, particularly not one that is so full of doubts.

The implications of this to public health and the public purse are immense.

PCBs are long living – they never fade away, they simply hang around looking for other PCBs. While not immediately lethal they collect in the environment and enter the food chain and people, where they seek each other out and attack vital organs such as the liver and kidneys and immune system causing conditions such as muscular failure and cancer. As PCBs are bio-cumulative, it could be a generation or two before the full health impacts materialise.

As long as they aren’t contained at Brofiscin this is the journey that these PCB wastes, dumped 40-odd years ago, are taking on a daily basis. The frightening thing is this situation is not peculiar to Brofiscin, or indeed Maendy, a nearby quarry where Monsanto also dumped wastes.

Other sites across Wales and England accepted these wastes; and many like Brofiscin and Maendy are believed to be on porous rock and were not prepared to accept them, ie, they weren’t lined to isolate the wastes, meaning these chemicals simply leach into the environment.

To investigate and remediate all these sites would, it has been conservatively estimated, cost somewhere between £500m to £1bn – it has cost £800,000 to date simply to investigate the situation at Brofiscin. Cleanaway are voluntarily remediating Maendy and Ellesmere Port. Penrhos has houses built on top of it. Planning permission is being sought for a residential development adjacent to one of the Telford sites.

If Monsanto aren’t made to pay then the taxpayer will have to, as the nature of PCBs in small cumulative doses are being increasingly recognised. The latest research links them to autism. If tort claims – civil actions bought about due to a loss in property value and health related claims – materialise then the true liability could be far more.

Yet the Agency don’t want Gowan to share his information with its officers in England who are responsible for those sites; just as they previously wanted to stop him sharing his information with the plaintiffs against Monsanto in the US. Viscount Mills wrote to Gowan in May saying he thought it best kept in house.

In her letter to the Ecologist Baroness Barbara Young says the Agency is interested in the quarry as it is now, not events that occurred 40 years ago – which hauntingly echoes Paul Mee’s view. If she is not interested in what went into the quarry, and who dumped the materials, and where they came from, how then can she expect accountability?

This shows a frightening lack of understanding of both the law, and the long-lived nature of PCBs. She also defends the behaviour of the Agency’s officers. Although, in light of the documents released, serious questions now need to be asked of the Agency, Home Office and Defra about the seeming covert capture of Gowan’s emails and misleading of parliament.

For 40 years strenuous efforts have been made to silence Gowan and bury the truth about Brofiscin. Repeatedly, then as now, whenever Gowan has challenged the attacks and smears on him he has been proven right. Twice in recent weeks the Agency have doggedly proffered one version of events before being forced to retract it – a case in point being their dogmatic insistence that only a small portion of the quarry accepted PCB wastes. They now concur with Gowan that around 80,000 tonnes were dumped there, over a 1.26 hectare area.

Whichever way you look at it the Agency has failed in its duty to Gowan, and is failing to protect public health and the public purse. It has failed to meet its stated aim to make the polluter pay. Its failure is all the more shameful as its very existence suggests that the environment is being protected when it clearly isn’t.

Stop press

Solutia Inc presented to the US bankruptcy court on Thursday May 17 a revised Plan of Re-organisation and Disclosure Statement. The key elements of this are that they will pay most creditors 85 cents on the dollar and end the parallel adversary action between themselves and their sister company ‘new’ Monsanto.

They have also bundled all their subsidiary companies, including Solutia UK, into their list of assets. However, they have listed no environmental liabilities from the UK. If this plan is accepted then Solutia Inc and Monsanto will probably escape their liabilities for Brofiscin and other UK sites where they dumped PCB wastes.

The Equity Committee, which represents the thousands of plaintiffs in the ongoing action, have, however, succeeded in having the adversary hearing about alleged fraud in disclosures over environmental liabilities reinstated for hearing on September 5.

The Environment Agency was still, apparently, not legally represented at the US hearing as no new lawyer has seemingly been admitted to the Court to represent their interests.

The Ecologist understands the Equity Committee is disappointed about this as they have referenced the situation in the UK as proof positive of undisclosed potential liabilities and therefore systemic fraud on behalf of Solutia Inc.